The Hate Crime and Public Order Bill is intended to provide for the modernising, consolidating and extending of hate crime legislation in Scotland. Since publication in April 2020, the draft Bill has attracted a range of critical responses, including the Law Society of Scotland and the Faculty of Advocates.
Earlier this year we launched a small crowdfunder to allow us to work on a detailed submission to the Justice Committee of the Scottish Parliament, which is tasked with overseeing the Bill. Our full submission to the Committee is available here:
Summary of key arguments
- The argument is not convincingly made by the Bracadale Review or the Scottish Government that expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups. Nor do other sources of evidence support this. The main purpose of the proposed expansion of stirring up offences appears to be symbolic.
- The Scottish Government has not treated with sufficient seriousness the potential impacts on freedom of expression of the expansion of stirring up offences.
- There is likely to be a substantial “chilling effect” from the combined effect of (a) behaviour only being required to be deemed “abusive” (b) likelihood being a sufficient test (c) the much weaker framing of the freedom of expression provision (for religion) compared to equivalent existing legislation in England and Wales and (d) the extension of freedom of expression protections to only two characteristics (religion and sexual orientation).
- How these provisions will work in relation to transgender identity, where there are strongly divergent views about what beliefs are intrinsically hateful, is a particular concern, strengthened by the absence of a mirror provision for sex.
- By increasing the number of characteristics included, the Bill reinforces a hierarchy between those characteristics that are protected and those that are not. The longer the list of groups included, the stronger the signal sent about the status those who are not. We are particularly concerned about the message sent by the omission of sex from the same protection as other characteristics, as the list expands.
We have also written a number of blogs and articles on the Bill, and submitted evidence to the Delegated Powers Committee, as detailed below.
Blog: Options for securing consensus on the Hate Crime and Public Order (Scotland) Bill
23 September 2020
Blog: The Scottish Parliament’s bill process and the Hate Crime and Public Order (Scotland) Bill
30 August 2020
This post sets out how the Scottish Parliament handles government bills, and what that means for the Hate Crime and Public Order (Scotland) Bill.
Blog: The limits of precedent and the special case of racial hatred
28 August 2020
The Scottish Government has drawn on the existing offence of stirring up racial hatred to minimise concerns about extending stirring up offences to other characteristics. In this blog we argue that this fails to recognise that different characteristics raise different issues for freedom of expression.
Submission to the Delegated Powers and Law Reform Committee on the Hate Crime and Public Order (Scotland) Bill
24 August 2020
Our submission to the Delegated Powers and Law Reform Committee notes that section 15(2) appears to enable the Scottish Government to put forward a bespoke definition of “sex” for the purpose of the Act. We suggest that maintaining a consistent definition in law of “sex” as a characteristic is valuable, and that it would be inappropriate to use ministerial regulation-making powers to depart from the well-established Equality Act definition of “sex”. We see no persuasive argument for that being necessary in this context, and argue that if the regulation-making power is retained, it should be restricted to using the definition of “sex” in the Equality Act 2010.
Blog: Should ‘Variations in Sex Characteristics’ be included in the Hate Crime and Public Order Bill?
22 August 2020
This blog considers whether VSCs should, uniquely among specific types of physical condition, be included as a hate crime characteristic and, looks at the evidence base.
Blog: Defining transgender identity in the Hate Crime and Public Order Bill and beyond
17 August 2020
This blog looks at how the characteristic ‘transgender identity’ is defined in the Hate Crime and Public Order Bill, and in public policy more widely. We argue that a failure to clarify what is meant by this term is likely to add to the already substantial risks around freedom of expression, as identified by the Law Society of Scotland, the Faculty of Advocates and many others.
The blog is also referenced in the following Spectator article by Stephen Daisley: Scotland’s Hate Crime Bill would have a chilling effect on free speech (22 August 2020).
Herald: Will Hate Crime Bill follow the path of its predecessor?
10 August 2020
This Herald Agenda article draws out the similarities between the current Hate Crime Bill and the 2005 Racial and Religious Hatred Bill, and considers the implications for freedom of expression.
Holyrood Magazine: The hate crime bill must be properly scrutinised
20 May 2020
In this comment piece we argue that the Scottish Government should be careful not to dismiss concerns about the Bill as unsubstantiated, or to paint those voicing concerns as bad faith actors.